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State v Tora - Sentence [2020] FJHC 511; HAC193.2019 (18 June 2020)

IN THE HIGH COURT OF FIJI AT LAUTOKA
AT LAUTOKA
[CRIMINAL JURISDICTION]
CASE NO: HAC. 193 of 2019

BETWEEN

STATE

AND

1. LUISA PENIANA TORA
2. TIKOTANI BALEIDROKADROKA

Counsel : Ms. R. Uce for State
: Ms. N. Sharma for the Accused

Hearing on : 29^th May 2020
Sentence : 18^th June 2020

SENTENCE

1. Ms. Luisa Peniana Tora and Ms. Tikotani Baleidrokadroka, you have freely and voluntarily pleaded guilty to one count of aggravated burglary and a count of theft before the trial at the earliest opportunity. I am satisfied and convinced that you have pleaded so, unequivocally and having understood the consequences of such a plea.
   

2. You were charged as follows;

COUNT 1

Statement of Offence

Aggravated Burglary: contrary to section 313(1) (a) of the Crimes Act 2009.

Particulars of Offence

Luisa Peniana Tora and Tikotani Baleidrokadroka, between the 17^th day of October, 2019 and the 18^th day of October, 2019, at Nadi, in the Western Division, broke and entered into Shop and Save Supermarket Shop 2, as trespassers, with intent to commit theft.

COUNT 2

Statement of Offence

Theft: contrary to section 291(1) of the Crimes Act 2009.

Particulars of Offence

Luisa Peniana Tora and Tikotani Baleidrokadroka, between the 17^th day of October, 2019 and the 18^th day of October, 2019, at Nadi, in the Western Division, dishonestly appropriated (stole) 4 x bags of chicken valued at $349.00 and 2 x cartons chicken portion packs valued at $275.40, the property of Shop and Save Supermarket Shop 2 with the intention to permanently depriving Shop and Save Supermarket Shop 2 of the said properties.

3. State has submitted the following as the Summary of Facts;

The complainant is Atish Chand (hereinafter referred to as “PW1”) 30 years of age, Manager residing at Nakawa, Nadi.

The accused are:

Luisa Tora (A1) 25 years of age, unemployed and resides at Tokovuci Settlement, Lautoka; and

Tikotani Baleidrokadroka (A2) 27 years of age, unemployed and resides at Yako, Nadi.

PW 1 is the Manager of the Shop and Save Supermarket.

On the 18th of October, 2019 at about 7 am, PW1 went to the Shop and Save Supermarket. He went straight to the back gate to open the padlock. When he went inside the supermarket, he saw the lockers were open and lying on the steps up to the bulk store. PW1 also saw the door to the bulk store was open and the padlock was lying outside. Thereafter, PW1 lodged a report with the police and investigation was carried out.

When the police came to the supermarket, they searched the whole supermarket but discovered that nothing seems to have been stolen. However, upon viewing the CCTV footage, PW1 saw someone broke into the shop and managed to take 4 bags of chicken valued at $349.00 and 2 cartons of chicken portion pack valued at $275.40. The person then loaded these items in one black gas vehicle.

Pauline Holmes (hereinafter referred to as “PW2”) manages the Deep Sea Bar and Grill Kava Shop. On the above mentioned date at about 3.30 am, she was inside the shop when one Tiko came to her shop and informed her that she was selling bags of chicken. According to PW3, she was informed by Tiko that she had bought the chicken from her workplace. PW3 bought one carton of chicken portion from Tiko for $70.00. She did not know that the carton of chicken had been stolen.

Sereana Boyant (hereinafter referred to as “PW3”) operates a food stall opposite the market in Nadi Town. On the above-mentioned date at about 3 am, she received a call from her nephew namely Filimoni informing her that he wanted to sell her a bag of chicken. According to PW4, Filimoni then came to her stall and sold her the bag of chicken for $70.00. PW4 was informed by Filimoni that he was driving a vehicle and one of his passengers could not pay his fare so he was given the bag of chicken for the fare.

The two accused were later arrested and interviewed under caution. A1 admitted that she and A2 had stolen 6 bags of chicken from Shop and Save Supermarket. They then went to Martintar whereby they sold the bags of chicken. She does not know where A2 sold all the bags of chicken because she was always inside the vehicle. They receive about $300 from selling the bag of chicken and shared it amongst themselves. She received $170 as her share. She was later dropped off at Lautoka city. She identified all the routes they followed during reconstruction. She was shown the CCTV footage and confirmed that she was the person seen in the footage.

[Copy of A1’s Record of Interview is attached as A]

A2 also admitted that she met A1 on the date of the alleged offence and they both plan to steal for money. They went to Shop and Save Supermarket and stole 4 bags of chicken 2 cartons of chicken portions. They then sold the bags & cartons of chicken. She identified all the routes that they followed during reconstruction. She was also shown the CCTV footage and confirmed that she was seen in the footage.

[Copy of A2’s Record of Interview is attached as A]

The two accused were charged with one count of Theft contrary to Section 291 (1) of the Crimes Act 2009. On the 5th of February, 2020, the two accused voluntarily pleaded guilty to the charge.

4. The said Summary of facts were read over and explained to you. You having understood the same agreed them to be true and correct.
   
5. I find that the summary of facts supports all elements of the charges in the 2^nd count of the Information, but not the 1^st. Accordingly I find the 2^nd count proved on the Summary of Facts agreed by you. Therefore, I convict on your own plea of the count of Theft as charged and acquit you of the 1^st count of Aggravated Burglary.
   
6. Section 4 of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. I have duly considered these factors in determining the sentence to be imposed on you.
   
7. Theft is committed if a person dishonestly appropriates property belonging to another with the intention to permanently depriving him of the property. The maximum penalty for theft is 10 years imprisonment under section 291 of the Crimes Act.
   
8. As for the offence of theft the accepted tariff would range from 2 months to 3 years (Ratusili v State [2012] FJHC 1249; HAA 011.2012).
   
9. An aggravating factor present in your case is that most of the stolen properties were not recovered. Further, these types of offences have increased due to the leniency they are dealt with and society now demands an unsympathetic and/or stern judicial approach on these types of offences in order to curtail them.
   
10. Their mitigating factors are;
    

i. You were not very matured at the time this alleged offence was committed.

ii. You have no previous convictions as for the material before me.

3. You pleaded guilty at the first available opportunity.
4. You have co-operated with the police, said to be remorseful and seek leniency and forgiveness from the court.
   

11. I would select 6 months as the starting point of your aggregate sentence. I would enhance 3 months due to aggravating factors mentioned above and deduct 4 months in consideration of the mitigating factors. Now your sentence is an imprisonment term of 5 months.
    
12. You have pleaded guilty at the very first opportunity and I will award the maximum possible discount of 1/3 for that. Therefore your final sentence is 3 months and 20 days of imprisonment.
    
13. You were remanded on 29^th of October 2019. The 1^st accused was granted bail on the 5^th of February 2020 and the 2^nd accused was granted bail on the 20^th of December 2019. Therefore the 1^st accused has been in for 3 months and 1 week in remand and the 2^nd accused has been in 2 months in remand.
    
14. In result, the remainder the 1^st accused has to serve would be 2 weeks of imprisonment and for the 2^nd accused would be 1 month and 3 weeks. In consideration of all the material before me, and the fact that you are first time offenders, for the purpose of promoting rehabilitation, I would suspend your sentence in terms of section 26(1) of the Sentencing and Penalties Act, for a period of 3 years.
    
15. The consequences of a committal of another offence within the operational period of the said suspended term will be explained to you by the clerks.
    
16. The final terms would be;
    

1^st Accused – 2 weeks of imprisonment, suspended for 3 years, and

2^nd Accused – 1 month and 3 weeks of imprisonment, suspended for 3 years.

17. You have 30 days to appeal to the Court of Appeal if you so desire.

Chamath S. Morais
JUDGE

At Lautoka
18^th June 2020.

Solicitors for the State : Office of the Director of Public Prosecutions, Lautoka.

Solicitors for the Accused : Legal Aid Commission, Lautoka.